Primum Non Nocere

The Commissioner for Human RightsCouncil of Europe

F-67075 STRASBOURG CEDEX

I would like to inform about the situation of medical malpractice victims in Poland and our organization's work and our situation. This letter is a request for help. Polish Patients' Association Primum Non Nocere - was established in November 1998 as an NGO assisting medical malpractice victims and their families. In Poland such people are left without social help and medical assistance. Malpractice cases are strictly concealed in the name of medical solidarity, the interest and safety of physicians obviously more important than the fate and health of their victims.

Apart from our daily activity (legal aid to victims) we have organised press conferences, sent petitions to members of parliament and staged protests and demonstrations in order to put more pressure on politicians to change the law. In response the Polish authorities launched attacks against our organization. They did this in two ways:

1. The Warsaw municipal authority prosecutor brought court charges against us when our volunteers put up posters advocating patient rights and help for medical malpractice victims. The same happened after we put up our parliamentary election posters. ( In the time of parliamentary election we had our candidates ) The official reason for the charges was that the posters caused disorder and were placed on municipal posts (cf: article 9 and 10 of the European Human Rights Convention). To date the courts have of course dismissed all accusations but it took time and nerves. You can see the court verdicts scans on our website at:

verdict 1

page 1: http://www.sppnn.org.pl/liber/o1.gif

page 2: http://www.sppnn.org.pl/liber/o2.gif

verdict 2

page 1: http://www.sppnn.org.pl/liber/w1.gif

page 2: http://www.sppnn.org.pl/liber/w2.gif

page 3: http://www.sppnn.org.pl/liber/w3.gif

The public prosecutor lost in court but continued to make the news with further charges and our next case is scheduled for January 21. The charges here are against Mrs Stanislawa Liber, a widow whose husband died in result of medical malpractice. The purpose of such proceedings is to make our life difficult and force us into stopping our activity.

2. There are also another accusations against our organization - but let me start with some information about the situation in Poland: data from other countries allow us to conclude that 20.000 - 40.000 people in Poland die or suffer each year due to medical malpractice. Only five or six hundred medical malpractice survivors get social and medical help (after a court verdict confirming they had fallen prey to medical malpractice. In Poland we have 3 (A,B And C) legal ways to confirm medical malpractice:

A. The civil court. The proceeding can take several years and often are so costly that most victims have no money to start them (a violation of art. 16 rec. (200)/5, Council of Europe Ministers' Committee).

Those who lose their cases also lose a lot of money and win the hatred of the medical lobby. Medical solidarity and forged medical records make such hearings very difficult. Because of this we only process approximately 1,200 civil court complaints per year, with the courts returning about 500 verdicts confirming medical malpractice.

B. Criminal investigation. Criminal court verdicts confirming medical malpractice are extremely rare in Poland. The public persecutor either refuses to investigate complaints or winds up the investigation without launching court charges.

C. The medical court. Medical court verdicts are also extremely rare in Poland In 2000 there were approximately 2,000 complaints by malpractice victims to the medical chamber and only 146 verdicts confirming medical malpractice cases. There were no verdicts banning malpracticing doctors from their profession. Before we started up in 1998 there were only 18 malpractice-confirming verdicts. Proceedings before the medical chamber can take place only in the presence of a chamber member (doctor). Medical malpractice victims can take part in the proceedings only as witnesses, if they are invited to testify. Medical hearings are hidden from the public and the press (a violation of art. 6 of the European Human Rights Convention)

We can estimate that each year no less then 15, 000 medical malpractice victims suffer and receive no help. Such cases are swept under the carpet in Poland, hence our efforts to disclose them and give victims a chance to make

Their complaints public. A person outside Poland has set up a web guestbook in which medical malpractice victims or their families can publish complaints. There is only one condition - the complaint must be signed. You will find the guestbook (in Polish) at:

http://htmlgear.lycos.com/guest/control.guest

The site also contains an outline of the medical malpractice problem, our reasons for disclosing medical malpractice cases and other information (in Polish):

http://www.angelfire.com/extreme2/lista/lista.htm

When we informed the media about the list of complaints, the medical lobby launched attacks against us. Their argumentation was that it was "illegal and criminal to publish complaints with no juridical verdict", or that it is "offensive for the medical profession to place such information in the internet".

A new ombudsman was elected in Poland last year. Our relations with his predecessor (professor A. Zielinski) were very good. The present ombudsman, professor A. Zoll, is a lawyer from Cracow and a direct relative to certain prominent personages of the Polish medical lobby. He wrote a letter to the minister of justice suggesting investigations into the weblist of medical malpractice victims, banning the list and punishing us and the listed malpractice victims for ruining the medical lobby's image (cf: art. 15 and 16 of the Recommendation Rec. (2000) 5, Council of Europe Ministers' Committee). The prosecution agreed to open the case.

You can find information (in Polish) about the new Polish ombudsman's activity and the text of his letter to the minister of justice on the National Medical Chamber's website:

http://www.nil.org.pl/news/serwis/se100701p.htm

The Polish authorities' steps in this respect are a serious violation of Recommendation Rec. (2000) 5 of the Council of Europe Ministers' Committee and have been undertaken in order is to hamper our work.

1. No delaying or wearing-down tactics for years on end
This frequent and appalling behaviour must be prevented to protect the victim.Private Vocational Liability Insurance schemes will and have to to accept liability in such cases, despite
claims to the contrary. These companies often try to intimidate victims to the extend where
they either "give up" or accept far too little or, at worst, no compensation at all.

2. Legal Obligation to notify the Authorities - creating a Databank of RegistrationThe General Public has the right to be notified of any professional misconduct.
Information of operations or treatments "gone wrong" must be available to the public on hand
of statistics at these Databanks of Registration.

3. Reversal of Burden of Proof, ie Physician to prove his innocence rather than patient guilt of same.His presence at any treatment or operation makes him well informed of any failures or
mistakes caused, and he, therefore, has to accept full liability if any such mistakes are
due to his incompentence. He must reveal any such mistakes, regardless of the patients
awareness of same , as the case may be. It should be part of a physicians "training" to be
honest and humane by admitting any error of judgment on his part!
Sadly, the reality looks rather different!

4. Prompt Completion of Proceedings regarding Professional Errors.
Prompt Action by Arbitration Commissions, if such are engaged.

5. Rate of Financial Compensation to be measured according to extend of disability suffered.

6. Improved Supervision of Physician by Independent Board to secure Safety of Patients.ie. to check - up on frequency of Further Training Courses attended by Physicians
to up-date their professional know-how.

7. Increased involvement of Health Insurances with regard to professional erros made, as well as "More Say" by the insured in such matters.

Emotional and financial backing for the afflicted and their Self Help Groups founded in the light
of these malpractices. Entitlement to vote to participate at local and national Health Meetings.

So the question of one practitioner. "Destiny? Don,t know what you mean!"

Attempt of explanation on medical terms.

"I was born, regardless..

I have to die, regardless

Destiny controls everything

These lines are destiny

but

If a craftsman is blamed for a leaking roof, he can't blame destiny!"

Craftsman -versus Physician

The distinction to look for here has got to be called responsibility.

A craftsman who "botched-up" the job is held liable for any damages caused.
The physician is entitled to call his medical malpractice a Professional Error,
simply dismissing it as destiny.
After that, he passes responsibility to his insurers, FAIT ACCOMPLI!!!!!